Sheffield v. City Of Fort Thomas

• Decision Date: 03 September 2010
• Docket Number: No. 09-5619.,09-5619.
• Citation: 620 F.3d 596
• Parties: William SHEFFIELD, Plaintiff-Appellant, v. CITY OF FORT THOMAS, KENTUCKY; Mary Brown, Mayor; Barbara Runge, James Doepker, Roger Peterman, Barbara Thompson-Levine, and Tom Lampe, Council Members; and Eric Haas, Mayor Pro-Tem; in their individual and official capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

620 F.3d 596

William SHEFFIELD, Plaintiff-Appellant,

v.CITY OF FORT THOMAS, KENTUCKY; Mary Brown, Mayor; Barbara Runge, James Doepker, Roger Peterman, Barbara Thompson-Levine, and Tom Lampe, Council Members; and Eric Haas, Mayor Pro-Tem; in their individual and official capacities, Defendants-Appellees.

No. 09-5619.

United States Court of Appeals,Sixth Circuit.

Argued: June 15, 2010.

Decided and Filed: Sept. 3, 2010.

COPYRIGHT MATERIAL OMITTED.

ARGUED: Robert E. Blau, Blau & Kriege, PLLC, Cold Spring, Kentucky, for Appellant. Jeffrey C. Mando, Adams, Stepner, Woltermann & Dusing, P.L.L.C., Covington, Kentucky, for Appellees. ON BRIEF: Robert E. Blau, Blau & Kriege, PLLC, Cold Spring, Kentucky, for Appellant. Jeffrey C. Mando, Adams, Stepner, Woltermann & Dusing, P.L.L.C., Covington, Kentucky, Stephen D. Wolnitzek, Wolnitzek & Rowekamp, P.S.C., Covington, Kentucky, for Appellees.

Before: KEITH, BOGGS, and McKEAGUE, Circuit Judges.

OPINION

BOGGS, Circuit Judge.

Plaintiff William Sheffield challenges several municipal ordinances enacted by the city of Fort Thomas, Kentucky, alleging that the ordinances violate the United States and Kentucky Constitutions and that the ordinances are preempted by Kentucky state statutes and administrative regulations. The district court rejected all of Sheffield's challenges. With one exception, we agree with that conclusion. We hold, however, that the district court erred in concluding that Kentucky administrative regulations have no preemptive force as against Kentucky municipal ordinances. We therefore affirm in part and reverse in part.

I. BACKGROUND

Between 1950 and the present day, the deer population within the state of Kentucky increased approximately five-hundredfold. According to the Kentucky Department of Fish and Wildlife Resources (“DFWR”), “deer are reaching a saturation point in many parts of the Commonwealth.” Among these regions is the heavily wooded area surrounding the city of Fort Thomas (a suburb of Cincinnati, Ohio), whose residents have suffered increasingly from motor vehicle collisions with deer, landscaping damage due to deer, and other cervid-perpetrated problems. Eventually, the members of the Fort Thomas City Council decided to take action.

Beginning in October 2006, a city administrative officer worked with DFWR representatives to develop a deer-management plan. Various options were considered, ranging from implementing a catch-and-release program to administering a birth-control drug derived from pig ovaries. In the end, the City Council opted for a three-part approach: (1) educating the public about deer-control tactics; (2) prohibiting deer feeding; and (3) permitting the hunting of deer by bow and arrow within the city limits, which DFWR representatives had advised was the most effective means of controlling the deer population in an urban area.

The second and third parts of this plan required several additions and amendments to the Fort Thomas City Code (the “Ordinances”), which the City Council enacted in December 2007. To implement the deer-feeding ban, the City Council adopted an ordinance (the “Deer-Feeding Ordinance”) which read in relevant part:

§ 91.50 DETERMINATION OF CITY.

It is hereby determined that an increasing population of deer within the city: poses a threat to public safety by increasing the likelihood of deer-vehicle collisions, deer attacks on residents, pedestrians and visitors, and the transmission of diseases to humans from deer; poses a threat to native plant and animal life by excessive foraging which disturbs natural ecological balances; and poses a threat to the quality of life by deer-related damage to landscaping and vegetable gardens.

§ 91.51 FEEDING PROHIBITED.

(A) No person shall knowingly, purposely or intentionally feed deer, cause deer to be fed or provide food to deer in the city on any public or private property. This prohibition includes, but is not limited to, disbursement of food on the ground, at a feeding station, in a feeding device, or in a container of any form; providing a salt or mineral lick/block; or any other means which serves to provide feed to any deer in the city.

(B) A person shall be deemed to have knowingly, purposely or intentionally fed deer, caused deer to be fed, or provided food to deer if the person places, or allows to be placed, wheat, pelleted livestock food, corn in any form, fruit, vegetables, hay or alfalfa, human food scraps, any form of commercially sold wildlife feed, birdseed or livestock feed, or any other edible matter that deer will consume on the ground or within the reach of deer. This prohibition shall not include live vegetation such as ornamental landscaping, flowers, trees, vines, vegetable gardens, edible matter located either in an enclosed building or stored in a securely sealed package, or unmodified commercially purchased bird feeders or their equivalent when placed out of the reach of deer.

Ft. Thomas, Ky. Ordinance O-34-2007 (Dec. 3, 2007) (codified at Ft. Thomas, Ky.Code §§ 91.50-52).

To implement the remainder of its plan, the City Council had to modify § 95.05 of the City Code, entitled “Discharge of Firearms and Other Weapons,” which provided at the time that “[n]o person [other than a police officer] shall discharge any firearm of any nature, nor use or discharge any sling, bow, or other weapon in the City of Fort Thomas....” To that end, the City Council enacted an ordinance (the “Bow-and-Arrow Ordinance”) inserting the following language at the end of § 95.05:

The provisions of this subchapter shall not apply to any individual discharging an arrow from a bow or crossbow when such discharge meets all of the following requirements:

(1) When such discharge occurs during the Kentucky archery hunting season for deer as established by the Commonwealth of Kentucky or when such discharge occurs pursuant to a depredation permit issued by the Kentucky Department of Fish and Wildlife Resources; ¹ and

(2) When the individual is discharging an arrow from a point not less than 200 feet from a residence, apartment, or business structure not on the property on which the discharge is occurring, or a street, highway, interstate, railroad or park, in the intended direction of the arrow; and

(3) When the individual is discharging an arrow in a manner where no residence, apartment or business structure not on the property on which the discharge is occurring, or a street, highway, interstate, railroad or park is less than 50 feet perpendicular to the arrow's intended path of trajectory [sic]; and

(4) When the individual is discharging an arrow in a manner in which it does not leave the property from which it is being discharged; and

(5) When the individual is discharging an arrow not more than 35 yards from the intended target; and

(6) When the individual discharging an arrow is either the owner of the property upon which the arrow is being discharged or has the permission of the property owner upon which the arrow is being discharged.

Ft. Thomas, Ky. Ordinance O-35-2007 (Dec. 17, 2007) (codified at Ft. Thomas, Ky.Code § 95.05).

Finally, to address the disposal of the carcasses of the deer (and other animals) that could now be shot by bow and arrow within the city limits, the City Council enacted another provision (the “Field-Dressing Ordinance”):

§ 95.30 SCOPE.

This subchapter shall apply to the field dressing of any animal killed in conjunction with the discharge of any arrow from a bow in strict compliance with § 95.05 of this chapter [i.e., the Bow-and-Arrow Ordinance].

§ 95.31 DEFINITIONS.

FIELD DRESSING. The process of removing blood and internal organs from an animal carcass.

§ 95.32 REQUIREMENTS.

Any individual who field dresses an animal carcass within the City of Fort Thomas is required to containerize and remove all blood and internal organs from within the City of Fort Thomas. No blood or internal organs resulting from field dressing an animal shall be buried, burned, or otherwise disposed of within the City of Fort Thomas, nor

shall any blood or internal organs be placed in trash containers for collection by the city or the city's garbage franchisee.

Ft. Thomas, Ky. Ordinance O-35-2007 (Dec. 17, 2007) (codified at Ft. Thomas, Ky.Code §§ 95.30-32).

In December 2007, Fort Thomas residents Lisa Kelly and William Sheffield filed suit in Kentucky state court against the city, as well as various city officials in their individual and official capacities, alleging that the Ordinances violated various provisions of the United States and Kentucky Constitutions and were preempted by Kentucky state statutes and administrative regulations. The defendants removed the complaint to federal court. In two separate orders dated January 8, 2009 and April 23, 2009, the district court granted the defendants summary judgment as to all claims. See Kelly v. City of Fort Thomas, Ky., 610 F.Supp.2d 759 (E.D.Ky.2009).

Plaintiffs timely appealed; Kelly, however, withdrew from the lawsuit after she was elected to the very City Council whose membership she was suing. Sheffield, now the sole appellant, has abandoned many of the claims asserted before the district court. His remaining claims are: (1) that all three Ordinances are preempted by Chapter 150 of the Kentucky Revised Statutes, which broadly regulates the Commonwealth's wildlife resources, and/or by Chapter 301 of the Kentucky Administrative Regulations, which more concretely regulates hunting; (2) that the Bow-and-Arrow Ordinance violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution and § 2 of the Kentucky Constitution because it infringes on his asserted “fundamental right to be free from a risk of serious bodily harm” and/or lacks a rational basis; and (3) that the Deer-Feeding Ordinance violates those same constitutional provisions because it is void for vagueness. ²

II. STANDARD OF REVIEW

We review de novo a district court's order granting summary judgment. Upshaw...